Just when Paul Tagliabue thought his week couldn't get any worse, it did:
Ohio State running back Maurice Clarett was ruled eligible for the NFL draft Thursday by a federal judge who concluded that the league's rule violates antitrust laws.U.S. District Judge Shira Scheindlin ordered the NFL to let Clarett enter April's draft, a decision that could clear the way for others. The league will appeal. . .
Alan Milstein, a lawyer for Clarett, called Thursday's decision "a total victory" and said Clarett was "thrilled." Clarett was travelling to New York for a news conference later Thursday, Milstein said.
Wow. Here's an excerpt from the judge's ruling:
The league had argued that Clarett should not be eligible because its rule resulted from a collective bargaining agreement with the players and is immune from antitrust scrutiny. The NFL also argued that its rule is reasonable and that Clarett cannot bring such a lawsuit."While, ordinarily, the best offence is a good defence, none of these defences hold the line," the judge wrote in a 70-page ruling.
She said Clarett could bring the lawsuit because he was fighting a policy that excludes all players in his position from selling their services to the only viable buyer - the NFL.
"The NFL has not justified Clarett's exclusion by demonstrating that the rule enhances competition. Indeed, Clarett has alleged the very type of injury - a complete bar to entry into the market for this services - that the antitrust laws are designed to prevent," she said.
Here's Skip Oliva on the decision:
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Sorry, I think the judge got it quite right. It seems to me that, despite Skip’s assertions, that there are indeed, competing “competitive rights” at play here. A “league’s business judgment” simply cannot exist in a vacuum. That’s basically the same excuse MLB used years ago when the reserve clause was in effect and free agency was a fantasy. Football is essentially the only sport where an individual physically able to play may be discriminated against and prevented from playing at the highest level of their sport because of his age. Hockey, baseball, basketball all allow people under the age of 20 to play. Tennis and swimming (and in some cases golf) allow them even younger.
The current structure is essentially a happy, collusive arrangement where the NFL and NCAA are able to use the collective bargaining agreement as a bind on a group that is not a party to it (the collegiate athletes) and forces that group either to stay in one arena where they can’t get paid — or settle for a second-best — area where they can get second-rate pay (Canadian Football). Indeed, the NFL’s expansion into Europe actually expands the ability for them to engage in antitrust activities, by closing another market. I’m no fan of Clarett, but good for him.
But I’m not sure how it’s right that the NFL *has* to let someone enter the draft. Isn’t it a private institution? Can’t they just make a rule that says you have to be age x and go from there?
Decisions like these are what make the rules that allowed Sergei Makarov to win Rookie of the Year in the NHL.
The hammer dropped on recruiting in the NCAA Division I area when the Duke kids started leaving early. I felt that was a big, big disappointment, and the amount of high school talen that is making the league (or trying) is just insane. Kids are getting to the point where they play in these private leagues here and there, don’t even think about going to college, and then try and get drafted. The NFL is now going to have the same problem. High School kids or kids just a year or two out of it are not going to play in the League – at least not en masse. If there was 5 players in the country in high school now who could play in the NFL TODAY I would be massively surprised.
Hell, half the “stars” of the college game couldn’t play a down in the NFL. Clarett is in a sticky situation with his O-State problems, and needed to get out of town. This is the e-ticket ride he needed.
I grew up in a hockey town (Saskatoon) where players like Scott Scissons, Kory Kocur, Norm Maracle, were all WHL stars and high draft picks that never made it to the NHL because they were drafted as 18 year olds and their bodies never matured like their teams had hoped.
It explains the very high failure rate of draft picks and a lot of wasted money.
A young draft age may be good for kids and the signing bonuses but it is bad on the teams. A 23 year old rookie in the NFL has had four more years of coaching, weight training and growing than some of these kids do that are coming out early and sadly, the result is predictable. These kids aren’t ready to play and as the Chicago Bulls are learning, paralyze a team while waiting (hoping) for them to develop.
I was wondering about the appeal possibilities as well… Obviously, this is time-sensitive, as the April draft is coming up. So if there is more to be said on this, the courts have to decide fairly quickly. I’m not so sure the NFL will bother with an appeal, though.
I’ve made my feelings on Clarett known here months ago, and this is pretty much the result I expected. In my view, especially as compared to how this sort of thing works in the other major sports, it’s the right thing to do. I’m not concerned at all with how it affects the college game, but that’s coming from a non-fan of the NCAA game.
I’m amused by Robert George’s comments, given that he’s a New York Post employee. I’ve heard many antitrust advocates call for the government breakup of News Corp., the Post’s parent, on the grounds that the company is “too big” and “anticompetitive”.
But as to his argument: I agree there is a collusive element to the NFL-NCAA-collective bargaining access. But the NFL is the least culpable party there. Of course the CBA affects the rights of non-parties like Clarett: *All* labor agreements are the product of laws that exempt unions from the antitrust laws. The NFL has to negotiate with the players’ union as a monopoly labor supplier under federal law. As for the NCAA, it is composed largely (at the Division I-A level) of government-run institutions imposing an unethical and immoral philosophy of amateurism. But none of these factors negates the NFL’s basic property rights.
George’s argument that NFL Europe may be an antitrust violation is typical antitrust-speak: A large company shouldn’t be permitted to enter new product markets because–heaven forbid–they might actually expand on their economic success.
I tend to agree Skip: the NFL ought to be able to decide for itself who it will offer the possibility of employment to. I do have a question, though. How exactly is the rule struck down by this decision worded? If the rule is stated in such a way as to imply that the player (e.g. Clarett) may not engage in certain activities, that makes it harder to defend, since it seems to imply that Clarett is party to a contract that he never agreed to. On the other hand, if it forbids the various teams in the league from selecting the player in the draft, then it becomes an agreement between consenting parties and could more plausibly be argued on the basis of maintaining competitive balance or some other such goal. Of course, that’s purely speculative and it probably wouldn’t have made any difference in the long run, anyway.
One thing I do take issue with is this abuse of the term “anti-trust”. The NFL is really in the entertainment business, where they face incredibly stiff competition from not just other sports leagues, but movies, music, television, etc. To say that they have a meaningful monopoly on much of anything is to miss the forest for the trees. Certainly, someone like Clarett doesn’t have much of a chance for high-salary employment anywhere other than the NFL, but neither the NFL, the courts, nor anyone else should be held responsible for Clarett making personal choices that leave him only a single viable option. Clarett has no more of a right to be employed by the NFL than a sociology Ph.D. has a right to a tenure-track job, instead of a job waiting tables or selling over-priced coffee.
That all having been said, if Clarett does end up getting drafted in April and it turns out badly (as I think it almost certainly will), the league will ultimately have nobody to blame but itself and specifically the owner who okays the selection of Clarett. It’s hard to feel too much sympathy for people who can’t control themselves enough to act in their own self-interest.
The rule is actually a “special eligibility” provision of the NFL Bylaws. The Bylaws establish general eligibility for anyone who graduated college or exhausted college eligibility, or was five years removed from the date of first college enrollment. “Special eligibility” can be granted by the commissioner for a player where “at least three full college [football] seasons have elapsed since their high school graduation”.
The court found this rule violated the Sherman Act under “rule of reason” analysis which, like *all* antitrust law, is purely an invention of the judiciary with no direct basis in statute. The court found there was a “relevant market” for “NFL players” that the NFL exercised “exclusive market power” over. This is conventional antitrust trickery — defining a relevant market as the company’s own product. That said, the court then applied a “quick look” test and found the rule was “so obvious[ly]” anticompetitive. This finding will probably be the key issue on appeal. The courts have struggled lately with when to use the “quick look” rule of reason and when to use the full-blown rule. Don’t ask me to explain the difference; there really isn’t any, but antitrust lawyers like to argue as if there is.